2. The applicants were represented by Mr S. Tanrıkulu,
a lawyer practising in Diyarbakır, Turkey. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the proceedings
before the Court.

3. The applicants alleged, inter alia, that Cavit Özalp had been killed by the security
forces while he was under custody and that there had been no effective
investigation into the circumstances of his death.

4. The application was transmitted to the Court
on 1 November 1998, when Protocol No. 11 to the Convention came into
force (Article 5 § 2 of Protocol No. 11). Mr Rıza Türmen, the judge
elected in respect of Turkey, withdrew from sitting in the case (Rule
28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit
as an ad
hoc judge in his place (Article 27 § 2 of the Convention and
Rule 29 § 1).

5. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

6. By a decision of 31 August 2000, the Court
declared the application partly admissible.

7. The applicants, but not the Government, filed
observations on the merits (Rule 59 § 1).

8. On 1 November 2001 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed First Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The applicants (see paragraph 1), who were
born in 1955, 1975, 1977, 1979, 1981, 1985, and 1988 respectively, are
the wife and children of the deceased, Cavit Özalp, who was killed
in 1995 while he was under custody.

Events concerning the death of Cavit Özalp

1. Facts as presented by the applicants

10. Until 1994, the Özalp family resided in the
Serçeler village in Bismil District in province of Diyarbakır. When
the security forces started to pressurise the Özalp family members
to become village guards, the family moved to Diyarbakır in the spring
of 1994.

11. On 21 August 1995
one of the applicants, Mr Hacı Özalp, went back to Bismil to visit
the fields that belonged to his family. When he arrived in Bismil, he
was stopped by soldiers and questioned about his father, Cavit Özalp.
He was subsequently taken to the gendarme command, where he was further
questioned about his father. During the interrogation, Hacı told them
where they could find Cavit Özalp.

12. On 24 August 1995
Cavit Özalp was taken into custody in Diyarbakır. On the same day,
Hacı saw his father in custody however he was not allowed to speak
to him.

13. On 26 August 1995 Hacı
was released from custody. On the same day, while he was still in Bismil,
he was informed by an acquaintance that an incident had taken place
in the Kamberli village and that it concerned his father. Consequently,
when Hacı went to the Kamberli village to find out more about this
incident, he met a villager, called Vehyettin, who told him that his
father was dead.

14. On the same day two
police officers visited Cavit's house in Diyarbakır and told Hacı's
uncle that Cavit had died.

15. On 5 February 1996
the applicants' representatives filed a petition with
the public prosecutor attached to the Diyarbakır State Security Court.
Referring to the investigation that had been commenced into the death
of Cavit Özalp and the decision of non-prosecution that had been delivered
by the Diyarbakır State Security Court public prosecutor, the applicants'
representatives requested a copy of the arrest and autopsy reports as
well as the public prosecutor's decision of non-prosecution.

16. The public prosecutor
refused to give these documents and noted at the bottom of the petition
the following:

“It has been decided [by this office] that
no prosecution should be brought about the death of Cevat Özalp [Note:
Cavit's name is spelled out as Cevat in the public prosecutor's note.]
pursuant to Article 96 of the Turkish Criminal Code. The investigations
in order to apprehend the co-activists of Cevat Özalp are still ongoing.
A copy of the investigation file could not have been given [to the representatives]
in accordance with the relevant provisions of the Constitution, as it
would constitute disclosure of the content and the subject matter of
the investigation file.”

2. Facts as presented by the Government

17. On 24 August 1995 Cavit Özalp was taken into
custody by the gendarmes from the Bismil Gendarme District Command on
suspicion of membership of the PKK, proscribed as a terrorist organisation.
He was suspected of aiding and abetting the PKK terrorists.

18. On an unspecified date
Cavit Özalp gave a statement to the gendarmes. He stated that the PKK
terrorists were occasionally staying in his house and that he was providing
them with food and military equipment such as weapons, clothes and medicine.
He further stated that he had dug a shelter with the terrorists on the
slopes of a hill near the Pamuk River in the Sarıhüseyin hamlet attached
to the Serçeler village to hide some equipment.

19. On 24 August 1995 Cavit
Özalp was taken to the Bismil Health Center for medical examination.
According to the medical report, there were no signs of ill-treatment
on his body.

20. On 26 August 1995 at
4 a.m. the gendarmes conducted a search to find out the location of
the shelter that had been mentioned by Cavit Özalp in his statement.
Cavit guided the soldiers to the shelter near the Şedat road in the
Kamberli village. While protecting themselves in a secure distance,
the soldiers asked him to open the cover of the shelter. As he opened
the cover, the soldiers witnessed a big explosion, which tore Cavit's
body into pieces. The explosives had been placed in the entrance to
the shelter by other members of the PKK and the soldiers found weapons,
medical equipment and clothes in the shelter. The incident was further
reported to the Bismil public prosecutor.

21. On the same day an
on-site examination was conducted by the Bismil public prosecutor together
with a doctor. According to an onsite body examination, it was established
that both legs were severed as a result of the explosion. No other signs
of injury were observed on the dismembered body. The doctor decided
that it was unnecessary to conduct a full autopsy on the body. Cavit's
corpse was then given to Mr Hasip Yılmaz, a member of the Kamberli
village assembly. An incident report was further drafted by the gendarmes
and was signed by three non-commissioned officers and the village mayor
Mr Kütbettin Altunç.

22. On 24 November 1995 the public prosecutor
at the Diyarbakır State Security Court decided that no prosecution
should be brought against Cavit Özalp on account of his membership
of the PKK on the ground that he had died on 26 August 1995.

23. On 14 November 1995
the Bismil public prosecutor accused the non-commissioned officer, Mr
İlhan Yücel, of failing to take the necessary precautions when Cavit
Özalp had been asked to open the cover of the shelter and of causing
Cavit Özalp's death through negligence. However, as the public prosecutor
did not have the jurisdiction to bring proceedings against the non-commissioned
officer, he declared lack of jurisdiction and transferred the case file
to the Bismil District Administrative Council.

24. Subsequently, the District
Administrative Council appointed a major as a rapporteur to conduct
further investigations into the killing of Cavit Özalp. On 15 January
1996 the major took statements from the non-commissioned officers, Mr
İlhan Yücel, Mr Yılmaz Öztiryaki and Mr Ömer Karabaş, who had
been on site during the incident of 26 August 1995. The officers stated
that Cavit Özalp had been taken into custody on suspicion of membership
of the PKK and had confessed that he had been aiding and abetting the
terrorists, providing them with food, clothes, weapons and medical equipment.
The soldiers further stated that Cavit had mentioned a shelter which
was used by the terrorists and when he was taken to the site to show
the place of the shelter, the gendarmes had positioned themselves far
from the shelter to prevent any loss of life. The soldiers explained
that Cavit was asked to open the shelter, however he had died as a result
of the explosion. The officers finally stated that medical equipment
and clothes had been found in the shelter.

25. Basing himself on the
statements of the three accused non-commissioned soldiers, the incident
and the body examination reports, on 23 January 1996 the rapporteur submitted
his report to the District Administrative Council. He concluded that
the security forces had taken all the necessary precautions before Cavit
Özalp was asked to open the cover of the shelter. The report further
stated:

“Having regard to the fact that Cavit Özalp
had confessed that he had dug a shelter [with the other terrorists]
it was presumed that he could have known the place of the shelter and
that he could have safely opened its cover himself. After the necessary
safety measures had been taken, he had been asked to open the cover.
However, he had died in an explosion. The explosives had been previously
placed there by the terrorists. Neither the security forces nor Cavit
Özalp had noticed the explosives.”

26. The report concluded that the security forces
had performed their duty with diligence and it was recommended that
no prosecution be brought against the members of the security forces.

27. On 28 February 1996 the Bismil District Administrative
Council issued a decision stating that no prosecution should be brought
against the members of the security forces. The council concluded that
Cavit Özalp had died as a result of the explosion and that the accused
members of the security forces had performed their duty with diligence.

28. On 2 April 1996 the Diyarbakır Regional Administrative
Court, to which the case had been automatically referred to by law,
upheld the decision of the Bismil District Administrative Council.

30. The applicants alleged that Cavit Özalp had
been killed by security forces while he was in their custody and that
no effective investigation had been carried out by the judicial authorities.
They complained of a violation of Article 2 of the Convention, which
provides:

“1. Everyone's right to life shall be protected
by law. No one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction of a crime
for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as
inflicted in contravention of this article when it results from the
use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent
the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of
quelling a riot or insurrection.”

31. The Government disputed those allegations.
They maintained that Cavit Özalp had been killed while showing a shelter
to the gendarmes when a bomb which had been planted by the PKK exploded.
They thus disputed the State's responsibility under this provision of
the Convention.

A. The circumstances of the death of Cavit
Özalp

32. The Court reiterates that Article 2 of the
Convention, which safeguards the right to life and sets out the circumstances
when deprivation of life may be justified, ranks as one of the most
fundamental provisions in the Convention, to which no derogation is
permitted. Together with Article 3, it also enshrines one of the basic
values of the democratic societies making up the Council of Europe.
The circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the Convention
as an instrument for the protection of individual human beings also
requires that Article 2 be interpreted and applied so as to make its
safeguards practical and effective (see Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII).

33. The text of Article 2, read as a whole, demonstrates
that it covers not only intentional killing, but also the situations
where it is permitted to use force which may result, as an unintended
outcome, in the deprivation of life. Article 2 may also imply in certain
well-defined circumstances a positive obligation on the authorities
to take preventive operational measures to protect an individual for
whom they are responsible (see, mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, p. 3159, § 115; Demiray, cited above, § 41).

34. In this respect, it should be underlined that
persons in custody are particularly in a vulnerable position and the
authorities are under a duty to protect them. Consequently, where an
individual is taken into custody in good health and is found to be injured
on release, it is incumbent on the State to provide a plausible explanation
of how those injuries were caused. The obligation on the authorities
to account for the treatment of an individual in custody is particularly
stringent where that individual dies (see Salman, cited above, § 99; Demiray, cited above, § 42). Thus, the State's responsibility
might be engaged where they fail to take all feasible precautions in
the choice of means and methods of a security operation with a view
to avoiding and, in any event, to minimising incidental loss of civilian
life (Ergi
v. Turkey, judgment of 28 July 1998, Reports 1998-IV, p. 1777, § 79). Although not every presumed
threat to life obliges the authorities, under the Convention, to take
concrete measures to avoid that risk, the position is different, inter alia,
if it is established that the authorities knew or ought to have known
at the time of the existence of a real and immediate risk to the life
of an individual or individuals and that they failed to take measures
within the scope of their powers which might have been expected to avoid
that risk (see, mutatis mutandis, Osman, cited above, p. 3159, § 116).

35. In assessing evidence, the general principle
applied in cases has been to apply the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of sufficiently
strong, clear and concordant inferences or of similar unrebutted presumptions
of fact. Where the events in issue lie wholly or in large part within
the exclusive knowledge of the authorities, as in the case of persons
within their control in custody, strong presumptions of fact will arise
in respect of injuries and death occurring during that detention. Indeed,
the burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Demiray, cited above, § 43).

36. Turning to the particular circumstances of
the present case, the Court's first task is to determine whether substantial
grounds have been shown for believing that the respondent State did
not comply with its duty to take all necessary measures to prevent lives
from being unnecessarily exposed to danger and, ultimately, from being
lost. Accordingly, the Court must consider whether the security forces
had planned and conducted the search in such a way so as to avoid or
minimise, to the greatest extend possible, any risk to the life of Cavit
Özalp.

37. In that connection, the Court notes that the
authorities were certainly in a position to evaluate the risks inherent
in visiting the alleged site of the shelter in question, at the relevant
time. The Court observes from the file before it that the gendarmes
were indeed aware of a risk of explosion when they asked Cavit Özalp
to open the door of the shelter. This fact is clear from the observations
of the Government, in which it is stated that taking into account the
existence of possible militants around, the gendarmes had taken necessary
precautions and hidden around the shelter when Cavit Özalp had gone
near the shelter (see paragraphs 20 and 24 above).

38. In the absence of any indication of other
measures taken to protect the life of Cavit Özalp, it can reasonably
be inferred that the relevant authorities had failed to take preventive
measures with requisite care to protect his life.

39. The Court therefore considers that the State's
responsibility for the death of Cavit Özalp is engaged. Accordingly,
the Court finds that there has been a violation of Article 2 of the
Convention in that regard.

B. The alleged inadequacy of the investigation

40. The Court reiterates that the obligation to
protect the right to life under Article 2 of the Convention, read in
conjunction with the State's general duty under Article 1 of the Convention
to “secure to everyone within [its] jurisdiction the rights and freedoms
defined in [the] Convention”, requires by implication that there should
be some form of effective official investigation when individuals have
been killed as a result of the use of force (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 101, ECHR 1999-IV).

41. In the present case, the Government maintained
that there were no shortcomings in the investigation into the killing
of Cavit Özalp and that the authorities had taken all the necessary
steps to meet the Convention standards.

42. The Court feels it important to point out
from the outset that the obligation to carry out an investigation in
circumstances such as those of the present case is not confined to cases
where it has been established that the killing was caused by an agent
of the State. In the instant case, the mere fact that the authorities
were informed of the death gave rise ipso facto to such an obligation
under Article 2 (see Tanrıkulu, cited above, § 103).

43. The Court would also observe that serious
doubts arise as to the ability of the administrative authorities concerned
to carry out an independent investigation, as required by Article 2
of the Convention, having regard to their nature and composition (see Oğur v. Turkey
[GC], no. 21594/93, § 91, ECHR 1999-III, and Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, pp. 1732-33, § 80).

44. With regard to the investigative measures
taken following the complaint, the Court observes that the Bismil public
prosecutor's office accused the gendarme non-commissioned officer, Mr
İlhan Yücel, of failing to take necessary precautions and causing
Cavit Özalp's death by negligence. However, as the public prosecutor
did not have the authority to prosecute non-commissioned officers, he
declared lack of jurisdiction and transferred the case-file to Bismil
District Administrative Council. Subsequently, a rapporteur, who was
a major, was appointed by the District Administrative Council to conduct
further investigations. This rapporteur took statements from the three
gendarme officers, who were at the scene of incident on 26 August 1995.
While preparing his report, the major solely based himself on the statements
of the accused gendarme officers and the incident report dated 26 August
1995, which was also signed by the same three gendarme officers, without
taking any further expert reports or any submissions from Cavit Özalp's
family members. The rapporteur further failed to take evidence from
the village mayor Kütbettin Altunç, who had signed the incident report.
On 28 February 1996 the Bismil Administrative Council adopted the rapporteur's
report and decided that there was no need to bring criminal proceedings
against the three accused gendarme officers. The case was then automatically
referred to the Diyarbakır Regional Administrative Court which upheld
the decision of the Administrative Council on 2 April 1996 (see paragraphs
22-28 above).

45. In the light of the foregoing, the Court observes
that the domestic authorities seem to have accepted the accused gendarme
officers' account of the facts without any doubt and without hearing
any further witnesses.

46. The Court concludes that the authorities failed
to carry out an effective investigation into the circumstances of Cavit
Özalp's death.

47. Accordingly, the Court holds that there has
been a violation of Article 2 of the Convention in that regard.

II. ALLEGED VIOLATION OF ARTICLE
3 OF THE CONVENTION

48. The applicants alleged that Cavit Özalp had
been ill-treated before his death.

49. The Government submitted that the applicants'
allegations were unsubstantiated. In this respect, they also submitted
a medical report, dated 24 August 1995, indicating that there were no
signs of ill-treatment on Cavit Özalp's body.

50. The Court observes that in their initial submissions,
the applicants submitted that Cavit Özalp had been tortured under custody.
However the applicants have failed to bring any evidence in support
of their allegations. In a written statement submitted to the Court,
Hacı Özalp, who is one of the applicants, stated that he had seen
his father in custody however he did not say that he had seen him being
ill-treated (see paragraph 12 above). The Court further notes that the
medical report dated 24 August 1995, which was submitted by the Government
states that there were no signs of ill-treatment on Cavit Özalp's body.

51. Accordingly, there is nothing in the case-file
to enable the Court to conclude that Cavit Özalp had been tortured
under custody.

52. In the light of the foregoing, the Court concludes
that there has been no violation of Article 3 of the Convention in the
instant case.

III. ALLEGED VIOLATION OF ARTICLE
6 OF THE CONVENTION

53. The applicants further complained that there
was no effective investigation into Cavit Özalp's death and that they
were denied access to a court, in violation of Article 6 § 1 of the
Convention, which in relevant part, provides as follows:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a]
tribunal ...”

54. The Court observes that the essence of the
applicants' complaint under Article 6 §1 of the Convention concerns
the domestic authorities failure to mount an effective criminal investigation
into Cavit Özalp's death. In the Court's view, it is therefore more
appropriate to examine the applicants' Article 6 complaint in relation
to the more general obligation on Contracting States under Article 13
of the Convention to provide an effective remedy in respect of violations
of the Convention (see amongst other authorities, Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 329, § 105 and Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 93).

55. It accordingly does not find it necessary
to determine whether there has been a violation of Article 6 § 1.

IV. ALLEGED VIOLATION OF ARTICLE
13 OF THE CONVENTION

56. Article
13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

57. The applicants complained that no effective
investigation had been conducted into the circumstances of Cavit Özalp's
death and they had been denied effective access to the investigative
process.

58. The Government alleged that there had been
no shortcomings in the investigation concerning the killing of Cavit
Özalp.

59. As the Court has held many times, Article
13 guarantees the availability at the national level of a remedy to
enforce the substance of the Convention rights and freedoms in whatever
form they might happen to be secured in the domestic legal order. The
effect of Article 13 is thus to require the provision of a domestic
remedy to deal with the substance of the relevant Convention complaint
and to grant appropriate relief, although Contracting States are afforded
some discretion as to the manner in which they conform to their Convention
obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant's complaint
under the Convention. Nevertheless, the remedy required by Article 13
must be “effective” in practice as well as in law, in particular
in the sense that its exercise must not be unjustifiably hindered by
the acts or the omissions of the authorities of the respondent State
(Aksoy,
cited above, § 95, and Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, § 103; Kaya,cited above, § 89).

60. The nature of the rights safeguarded under
Articles 2 and 3 of the Convention has implications for Article 13.
Where there is an arguable claim that an individual has been tortured
or subjected to serious ill-treatment, or deprived of his or her life,
by agents of the State, Article 13 requires, in addition to the payment
of compensation where appropriate, a thorough and effective investigation
capable of leading to the identification and punishment of those responsible
for the treatment in question or the deprivation of life, including
effective access for the complainant to the investigation procedure
(Salman,
cited above, § 121).

61. On the basis of the evidence adduced in the
present case, the Court has found that the Government are responsible
under Article 2 of the Convention for the death of Cavit Özalp while
he was under custody. The applicants' complaints in this regard are
therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April
1988, Series A no. 131, p. 23, § 52, and Kaya, cited above, § 107).

62. The authorities thus had an obligation to
carry out an effective investigation into the circumstances of the death
of Cavit Özalp. For the reasons set out above (see paragraphs 43-46),
no effective criminal investigation can be considered to have been conducted
in accordance with Article 13, the requirements of which may be broader
than the obligation to investigate imposed by Articles 2 and 3 (Kaya,
cited above, pp. 330-31, § 107, and Salman, cited above, § 123).

63. The Court further notes that the Diyarbakır
State Security Court Public Prosecutor had refused to hand out copies
of the arrest and autopsy reports to the applicants' representative
and refers to the fact that no statement was taken from any of the Özalp
family during the investigation which was commenced following Cavit
Özalp's death.

64. The Court concludes therefore, that the applicants
have been denied an effective remedy in respect of the death of Cavit
Özalp and thereby they had no access to any other available remedies
at their disposal, including a claim for compensation.

65. In the light of the foregoing, the Court finds
that there has consequently been a violation of Article 13.

V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION

66. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Pecuniary damage

67. The applicants claimed 136,269 US Dollars
(USD) in respect of pecuniary damage.

68. The Government made no submissions as to the
amounts claimed.

69. The Court recalls that there must be a casual
connection between the damage alleged by the applicants and violation
of the Convention and that this may, if appropriate, include compensation
in respect of loss of earnings (see amongst other authorities, Barberà, Messegué and
Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series
A no. 285-C, pp. 57-58, §§ 16-20, and Salman, cited above, § 137). The Court has held (see paragraphs
32-39 above) that the authorities were responsible under Article 2 of
the Convention for Cavit Özalp's death. In these circumstances, there
is direct casual link between the violation of Article 2 and the loss
of potential financial support which the victim had been providing for
his widow and children. The Court recognises that if Cavit Özalp was
still alive he would have had the possibility of contributing to his
family's livelihood.

70. The Court therefore rules on an equitable
basis and awards 30,000 euros (EUR) as pecuniary damage to the applicants,
such sum to be converted into Turkish Liras (TRL) at the rate applicable
at the date of payment and to be paid to the applicants' bank account
in Turkey.

B. Non-pecuniary damage

71. The applicants, who are the wife and children
of the deceased Cavit Özalp, further claim USD 55,000 in respect of
non-pecuniary compensation.

72. The Government did not make any comments on
this issue.

73. The Court, having regard to the sums which
it has awarded in comparable cases and deciding on an equitable basis,
awards EUR 25,000 for non-pecuniary damage, such sum to be converted
into TRL at the rate applicable at the date of payment and to be paid
into the applicants' bank account in Turkey.

C. Costs and expenses

74. The applicants claimed USD 7,800 for legal
fees and costs, corresponding to 78 hours' work and expenses incurred
by their lawyer.

75. The Government did not express a view.

76. The Court notes firstly that the applicants
have not supplied a breakdown of the number of hours worked by their
lawyer and have not submitted any bill of costs and fees. In accordance
with Rule 60 § 2 of the Rules of Court, the Court cannot therefore
accept that request as such. The fact remains, nonetheless, that the
applicants did necessarily incur costs for the work done by their lawyer
to represent them in both the written and oral proceedings before the
Court (see, mutatis mutandis, Labita v. Italy [GC], no. 26772/95, § 210, ECHR 2000-IV). The
Court notes that ruling on an equitable basis, it awards EUR 6,000 under
this head. That sum, to be converted into Turkish liras at the rate
applicable at the date of settlement, shall also be exempt from all
taxes and duties.

D. Default interest

77. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 2 of the Convention
in relation to Cavit Özalp's death;

2. Holds that there has been a violation of Article 2 of the Convention
on account of the failure of the authorities of the respondent State
to conduct an effective investigation into the circumstances of the
death of Cavit Özalp;

3. Holds that there has been no violation of Article 3 of the Convention;

4. Holds that there is no need to determine whether there has
been a breach of Article 6 of the Convention;

5. Holds that there has been a violation of Article 13 of the Convention;

6. Holds

(a) that the respondent State is to pay
the applicants, within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish Liras at the rate applicable at
the date of the settlement and exempt from all taxes and duties:

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing
on 8 April 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.